Filed Washington State Court of Appeals Division Two
March 3, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II LESTERS PAINTING, LLC, a Washington No. 59928-7-II limited liability company,
Respondent,
v. ORDER GRANTING MOTION TO CARL PERAZA and SUSAN PERAZA, a PUBLISH AND PUBLISHING OPINION married couple,
Appellants.
Respondent, Lesters Painting, LLC, filed a motion to publish this court’s opinion filed on
November 4, 2025. After consideration, the court grants the motion. It is now
ORDERED that the final paragraph in the opinion which reads “A majority of the panel
having determined that this opinion will not be printed in the Washington Appellate Reports but will
be filed for public record pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is further
ORDERED that the opinion will now be published.
FOR THE COURT
PANEL: Jj. Lee, Glasgow, Che
LEE, JUDGE Filed Washington State Court of Appeals Division Two
November 4, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II LESTERS PAINTING, LLC, a Washington No. 59928-7-II limited liability company,
v.
CARL PERAZA and SUSAN PERAZA, a UNPUBLISHED OPINION married couple,
LEE, P.J. — Carl and Susan Peraza (the Perazas) appeal the superior court’s order
confirming the sheriff’s sale and order denying their motion to vacate default judgment and quash
the sheriff’s sale.1 The Perazas argue the superior court abused its discretion when it refused to
vacate the default judgment. We hold that the superior court did not abuse its discretion and affirm.
1 In their challenge to the order confirming the sheriff’s sale, the Perazas simply state that because the superior court “did not give notice to the Perazas, the order is void.” Br. of Appellant at 15. The Perazas do not provide any arguments or analysis to support their assertion. “Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, review denied, 136 Wn.2d 1015. (1998). Therefore, the Perazas challenge to the order confirming the sheriff’s sale fails.
In their reply brief, the Perazas argue for the first time that the superior court’s award of attorney fees should be vacated. Because this issue is raised for the first time in their reply brief, we do not address this issue. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (“An issue raised and argued for the first time in a reply brief is too late to warrant consideration.”). No. 59928-7-II
FACTS
A. BACKGROUND
In August 2021, the Perazas made an oral contract with Lesters Painting for labor,
materials, and services related to repairs and remodeling on the Perazas’ property in Battle Ground,
Washington. During the project, Lesters Painting sent to the Perazas 10 invoices for work on the
project. The invoices totaled $72,026.32. The Perazas only paid Lesters Painting $6,000.
On April 7, 2022, the Perazas executed a promissory note to pay Lesters Painting $60,000
within sixty days for the work on the Perazas’ property. The promissory note provided that the
Perazas would be liable for “all costs . . . including without limitation the complete legal costs”
resulting from any default by the Perazas. Clerk’s Papers (CP) at 55. The Perazas failed to make
any payment on the promissory note.
B. PROCEDURAL HISTORY
On July 25, 2022, Lesters Painting filed a complaint against the Perazas. The complaint
alleged breach of contract, breach of promissory note, and unjust enrichment and sought $60,000
in damages. The Perazas resided in California. After several attempts at personal service,
substitute service was effectuated at the Perazas’ California residence on October 12, 2022.
1. Default and Default Judgment
On December 15, 2022, Lesters Painting filed a motion for default after the Perazas failed
to appear in the action or answer the complaint. On December 16, the superior court granted
Lesters Painting’s motion for an order of default.
On December 21, the superior court entered an order for default judgment against the
Perazas in the amount of $66,597.
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On June 1, 2023, the Perazas filed a motion to vacate the order of default. The Perazas
argued that the order of default should be vacated “based on failure of service.” CP at 125. The
superior court found the Perazas failed to prove by clear and convincing evidence that service was
improper. The court stated that there was no basis in the record for the court to find mistake,
inadvertence, or excusable neglect that would give the court discretion to vacate the default. As a
result, the superior court denied the motion to vacate the order of default. The Perazas did not
appeal this decision.
2. Writ of Execution and Sheriff’s Sale
On June 27, 2023, Lesters Painting sought a writ of execution on the Perazas’ Battle
Ground property, which the superior court granted. The sheriff’s sale occurred on October 27, and
the Battle Ground property was sold to Nylund, Inc. for $140,000 to satisfy the judgment of
$66,597. All parties received notice of the sheriff’s return on sale on October 30. The notice
provided that the creditor or purchaser was entitled to an order confirming the sale unless the
debtor objected within twenty days. The superior court signed an order confirming the sale after
the twenty-day period lapsed without any action by the Perazas.
3. Motion to Vacate Default Judgment and Quash the Sheriff’s Sale
On November 20, 2023, the Perazas, through new counsel retained in September, filed a
motion to vacate default judgment and to quash the sheriff’s sale, along with an answer to the
complaint filed in July 2022. In their answer, the Perazas primarily focused on Lesters Painting’s
failure to provide documentation for purchased materials and labor records to support its invoices.
The Perazas conceded that they received invoices from Lesters Painting, but the Perazas
alleged in their answer to the complaint that the parties orally agreed that Lesters Painting would
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provide documentation supporting those invoices. The Perazas’ answer also claimed that they had
orally agreed Lesters Painting would track its “material purchases for the work and the labor hours
and wages and . . . use them to substantiate any invoice.” CP at 279. The Perazas’ answer further
alleged that the Perazas did not sign a promissory note—rather, Carl2 initialed the promissory note
because Lesters Painting fraudulently promised to provide documentation supporting the invoices.
In his declaration, Carl did not address any contract terms, but Carl did state that he “want[ed] to
see the invoices and labor records upon which Lesters [Painting] basis [sic] the 10 invoices.” CP
at 289.
In their motion to vacate the default judgment, the Perazas argued that “[t]he sole issue”
was Lesters Painting’s refusal to provide original invoices for the materials and labor. CP at 291.
The Perazas maintained that there was clear evidence of a defense; that “[i]n spite of this court’s
finding that service was proper,” the Perazas promptly retained counsel after becoming aware in
March 2023 of the lawsuit and default judgment; that they moved to vacate after learning of the
default judgment; and that any hardship to Lesters Painting is the result of its refusal to provide
original invoices. CP at 292.
On December 8, the superior court heard arguments on the motion to vacate default
judgment and to quash the sheriff’s sale. During the hearing, the Perazas clarified that they were
not disputing the previous finding that service was proper. Rather, the Perazas argued that “in
order for a default judgment to be taken, the defendant—or the plaintiff must produce admissible
evidence to establish a claim. As I have indicated, there is no evidence sustaining the consideration
2 Because Carl and Susan have the same last name, we refer to them by their first names where necessary to avoid confusion. We intend no disrespect.
4 No. 59928-7-II
for the $60,000 note.” Verbatim Rep. of Proc. (VRP) (Dec. 8, 2023) at 4. The Perazas also argued
that the sheriff’s sale was a constitutional taking without due process. Lesters Painting responded
by arguing that the “issue of the invoice” was not relevant to the claim that the Perazas failed to
pay under the promissory note. VRP (Dec. 8, 2023) at 8.
After hearing the parties’ arguments, the superior court stated that it did not find “a basis
either constitutionally, statutorily, or based on our rules of procedure to vacate the orders entered
by the court.” VRP (Dec. 8, 2023) at 12. The superior court found the Perazas’ argument did not
meet the standard for vacating the default judgment and reversing the writ of execution. Finally,
the superior court found that the Perazas had sufficient notice because the statutory requirements
for notice were met and the Perazas were represented by counsel. Accordingly, the superior court
denied the Perazas’ motion to vacate the default judgment and quash the sheriff’s sale.
The Perazas appeal.
ANALYSIS
A. MOTION TO VACATE DEFAULT JUDGMENT
The Perazas argue that the superior court abused its discretion when it denied the Perazas’
motion to vacate the default judgment and quash the sheriff’s sale.3 We disagree.
We review decisions to set aside default judgments for abuse of discretion. Little v. King,
160 Wn.2d 696, 702, 161 P.3d 345 (2007). A superior court abuses its discretion “by making a
decision that is manifestly unreasonable or by basing its decision on untenable grounds or
3 Except as noted in footnote 1 above, the Perazas provide no argument with regard to the sheriff’s sale. Therefore, we do not address the Perazas’ challenge to the superior court’s order denying the Perazas’ request to quash the sheriff’s sale. See Holland, 90 Wn. App. at 538.
5 No. 59928-7-II
untenable reasons.” VanderStoep v. Guthrie, 200 Wn. App. 507, 518, 402 P.3d 883 (2017), review
denied, 189 Wn.2d 1041 (2018). “[W]e are more likely to find an abuse of discretion when the
[superior] court denies a motion to set aside a default judgment than when the [superior] court
grants such a motion.” Id. “[D]efault judgments generally are disfavored because courts prefer to
resolve cases on their merits.” Id. at 517.
CR 60(b)(1) provides relief from a judgment for “[m]istakes, inadvertence, surprise,
excusable neglect or irregularity in obtaining a judgment or order.” In determining whether a
default judgment should be vacated under CR 60(b)(1), courts apply a four-prong test that
examines whether:
(1) . . . there is substantial evidence supporting a prima facie defense; (2) . . . the failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) . . . the defendant acted with due diligence after notice of the default judgment; and (4) . . . the plaintiff will not suffer a substantial hardship if the default judgment is vacated.
Little, 160 Wn.2d at 703-04. The first two factors are the primary considerations in whether to set
aside a default judgment, and the second two factors are secondary. Id. at 704. “Where a party
fails to provide evidence of a prima facie defense and fails to show that its failure to appear was
occasioned by mistake, inadvertence, surprise, or excusable neglect, there is no equitable basis for
vacating judgment.” Id. at 706.
1. Prima Facie Defense
The Perazas argue that they presented substantial evidence of a prima facie defense to the
default judgment because Lesters Painting failed to provide documentation to support the amounts
in the invoices. We disagree.
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In determining whether to vacate a default judgment, courts first consider whether there is
substantial evidence supporting a prima facie defense. Id. at 703-04. When determining whether
substantial evidence supports a prima facie defense, the superior court must make all reasonable
inferences from the evidence in favor of the party moving to vacate the default orders. Ha v. Signal
Elec., Inc., 182 Wn. App. 436, 449, 332 P.3d 991 (2014), review denied, 182 Wn.2d 1006 (2015).
The defendant must provide concrete facts and cannot merely rely on allegations. Id. “The trial
court need only determine whether the defendant is able to demonstrate any set of circumstances
that would, if believed, entitle the defendant to relief.” Id.
Lesters Painting claimed three bases for recovery in its complaint: breach of contract,
breach of promissory note, and unjust enrichment. Because the Perazas failed to present
substantial evidence to support a prima facie defense, the superior court did not abuse its discretion
in denying the Perazas’ motion to vacate the default judgment.
2. Failure to Show Prima Facie Defense to Default Judgment
a. Breach of contract
The Perazas fail to present evidence of a prima facie defense to the default judgment on
the breach of contract claim. Other than claiming in their late-filed answer to the complaint that
the parties had orally agreed that Lesters Painting would provide documentation to support their
invoices, there is no evidence refuting the amount of damages in the judgment on the breach of
contract claim. An answer to a complaint merely sets forth allegations and is insufficient to support
a prima facie defense. See Ha, 182 Wn. App. at 449 (“The defendant must set out concrete facts
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and cannot merely state allegations.”).4 Thus, the Perazas have failed to meet their burden to show
a prima facie defense to judgment on the breach of contract claim.
b. Breach of promissory note
The Perazas argue that because Lesters Painting did not provide documentation to support
its invoices, there was no consideration for the promissory note. The Perazas also argue that Carl
initialed the promissory note with the understanding that Lesters Painting would provide
documentation supporting its invoices as a condition precedent to its enforceability.
A promissory note is a contract to pay money. Dep’t. of Revenue v. Sec. Pac. Bank of
Wash., 109 Wn. App. 795, 808, 38 P.3d 354 (2002). To be enforceable, a contract must be
supported by consideration. SAK & Associates, Inc. v. Ferguson Const., Inc., 189 Wn. App. 405,
411, 357 P.3d 671 (2015). “Consideration is a bargained-for exchange of promises.” Labriola v.
Pollard Grp., Inc., 152 Wn.2d 828, 833, 100 P.3d 791 (2004). “Consideration is ‘any act,
forbearance, creation, modification or destruction of a legal relationship, or return promise given
in exchange.’” Id. (quoting King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d 160 (1994)).
Here, Lesters Painting sent to the Perazas 10 invoices for work on the project totaling
$72,026.32. The Perazas only paid Lesters Painting $6,000. The Perazas then executed a
promissory note to pay Lesters Painting only $60,000, which is less than the amount owed to
Lesters Painting. Based on this record, there was consideration.
The Perazas rely only on their late-filed answer to support their arguments; Carl’s
declaration is silent as to the promissory note. An answer to a complaint merely sets forth
4 Also, the only argument put forth by the Perazas is that it was unjust and inequitable to enter the default judgment because Lesters Painting knew the Perazas contested the debt owed.
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allegations and is insufficient to support a prima facie defense. See id. at 449 (“The defendant
must set out concrete facts and cannot merely state allegations.”).
Also, apart from an assertion in the late-filed answer that Lesters Painting orally agreed to
provide material invoices and labor records, there is no evidence supporting a prima facie defense
to the amount of the default judgment on the promissory note. See Little, 160 Wn.2d at 704
(Generally, “a party who moves to set aside a judgment based upon damages must present evidence
of a prima facie defense to those damages.”). Instead of presenting evidence challenging the
amount of damages under the promissory note, the Perazas’ argument relates to the enforceability
of the promissory note. The Perazas’ argument that the promissory note is unenforceable is not a
defense to the amount of damages in the default judgment under the breach of promissory note
claim. Therefore, the Perazas fail to meet their burden of showing a prima facie defense to default
judgment for the breach of promissory note claim.
c. Unjust enrichment
Unjust enrichment allows a party to recover the value of a benefit retained in the absence
of a contractual relationship because fairness and justice require it. Austin v. Ettl, 171 Wn. App.
82, 92, 286 P.3d 85 (2012). “A claim for unjust enrichment consists of three elements: (1) a
plaintiff conferred a benefit upon the defendant, (2) the defendant had knowledge or appreciation
of the benefit, and (3) the defendant's accepting or retaining the benefit without the payment of its
value is inequitable under the circumstances of the case.” Id.
The Perazas provided no evidence of a prima facie defense to the default judgment on
Lesters Painting’s unjust enrichment claim. And the Perazas provide no argument addressing a
prima facie defense to the judgment on the unjust enrichment claim.
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To the extent the Perazas argue that Lesters Painting’s failure to provide documentation to
support the invoices is a defense, this argument fails. The Perazas’ argument relates exclusively
to the enforceability of the contracts at issue here. Accordingly, the Perazas’ argument that the
contracts with Lesters Painting are unenforceable is not a defense to Lesters Painting’s claim that
the Perazas obtained a benefit at Lesters Painting’s expense such that justice requires recovery in
the amount stated in the default judgment. Therefore, the Perazas fail to show a prima facie
defense to default judgment on the unjust enrichment claim.
In sum, the Perazas fail to present substantial evidence of a prima facie defense to any of
the damages in the default judgment on Lesters Painting’s claims.
3. Failure to Show Mistake, Inadvertence, Surprise, or Excusable Neglect
The Perazas argue that they are entitled to relief because their failure to timely appear was
due to mistake, inadvertence, surprise, or excusable neglect. We disagree.
In determining whether to vacate a default judgment, the second consideration is whether
the failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable
neglect. Little, 160 Wn.2d at 704. The superior court has broad discretion over the issue of
excusable neglect, and it exercises that discretion on a case-by-case basis. Rosander v.
Nightrunners Transp., Ltd., 147 Wn. App. 392, 406, 196 P.3d 711 (2008). The superior court may
make credibility determinations or weigh evidence to determine whether there has been mistake,
inadvertence, or excusable neglect. VanderStoep, 200 Wn. App. at 526.
Other than a bare statement that the Perazas did not learn of the default judgment due to
mistake, inadvertence, surprise, or excusable neglect, the Perazas provide no argument or legal
authority that supports their assertion. Therefore, we decline to consider whether the Perazas
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satisfy this element. In re Guardianship of Ursich, 10 Wn. App. 2d 263, 278, 448 P.3d 112 (2019),
review denied, 194 Wn.2d 1022 (2020); see also RAP 10.3(a)(6).
To the extent the Perazas are attempting to argue that they were justified in failing to timely
appear due to mistake, inadvertence, surprise, or excusable neglect, the superior court resolved this
issue when it denied the Perazas’ motion to vacate the default order. The Perazas did not appeal
the superior court’s order denying their motion to vacate the default order, and they do not contend
that service was improper in this appeal. Accordingly, the Perazas fail to show mistake,
inadvertence, surprise, or excusable neglect.
Because the Perazas failed to provide evidence of a prima facie defense and cannot show
that their failure to appear was occasioned by mistake, inadvertence, surprise, or excusable neglect
(the primary considerations in determining whether to set aside a default judgment), there is no
equitable basis for vacating the default judgment. See Little, 160 Wn.2d at 706.5
B. ATTORNEY FEES ON APPEAL
Lesters Painting requests attorney fees on appeal based on the promissory note and RAP
18.9. We grant Lesters Painting’s request for attorney fees on appeal.
Under RAP 18.1, we may grant attorney fees as applicable law allows. When a contract
authorizes attorney fees at trial, they are also available on appeal. Thompson v. Lennox, 151 Wn.
App. 479, 491, 212 P.3d 597 (2009).
5 Because the primary considerations for setting aside a default judgment are not met, we need not address the third and fourth factors to reach our determination that there is no equitable basis for vacating the default judgment. However, we note that even if the Perazas did not become aware of the default order and default judgment until March 2023, they did not move to vacate the December 2022 default order until almost three months later, in June 2023. And they did not move to vacate the default judgment until November 2023.
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In the promissory note, the Perazas agreed that they would be liable for “all costs . . .
including without limitation the complete legal costs” resulting from any default by the Perazas.
CP at 55. Because we affirm the superior court, Lesters Painting is entitled to attorney fees under
this provision.6
CONCLUSION
Because the superior court did not abuse its discretion when it denied the Perazas’ motion
to vacate default judgment, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, P.J. We concur:
Glasgow, J.
Che, J.
6 Because we grant attorney fees on appeal to Lesters Painting pursuant to RAP 18.1 and the promissory note, we do not address Lesters Painting’s request for attorney fees on appeal pursuant to RAP 18.9.